I. Statement of the Case

This matter is before the Authority on exceptions to an award of Arbitrator Robert L. Kyler filed by the Agency under section 7122(a) of the Federal Service Labor-Management Relations Statute (the Statute) and part 2425 of the Authority's Regulations. The Union filed an opposition to the Agency's exceptions.

The Arbitrator sustained a grievance over the Agency's failure to observe the overtime callback roster procedure in the parties' collective bargaining agreement (the agreement). The Arbitrator found that the Agency's failure denied the grievant the opportunity to work overtime, and he ordered the Agency to pay the grievant for the lost overtime opportunities.

For the reasons that follow, we conclude that the Agency has not established that the award is deficient under section 7122(a) of the Statute insofar as it pertains to the assignment of overtime to bargaining unit employees. However, we find that the award, as it pertains to the assignment of work to supervisors, is contrary to law because it violates management's rights to assign work and assign employees under section 7106(a) of the Statute. Therefore, we set aside the award to the extent it limits the assignment of work to supervisors and provides the grievant backpay for work performed by supervisors. We deny the Agency's other exceptions.

II. Background and Arbitrator's Award

The grievant is a medical administrative assistant (MAA) in the Agency's Medical Administration Service (MAS). He volunteered to be placed on the overtime callback roster established under Article 15 of the parties' master agreement. [n2]

Prior to February 17, 1994, the Agency had followed the overtime callback roster procedure in all components of the bargaining unit. Beginning February 17, 1994, the Agency deviated from the procedure in the MAS component, but continued to observe the overtime callback roster procedure in all other components. On over thirty occasions, due to fiscal constraints, the Agency assigned overtime work for the MAA position to supervisors or to other unit employees outside the MAS who were not on the overtime callback roster and who were not paid overtime. The parties stipulated that for each occasion the grievant was not called back to perform overtime work, he "was available to work and would have worked the assignment if granted the opportunity." Award at 6.

The Union filed a grievance alleging that the Agency failed to follow the overtime callback roster procedure and deprived the grievant of the opportunity to earn overtime pay. When the grievance was not resolved, it was submitted to arbitration.

The parties could not agree on the issue to submit to the Arbitrator. The Arbitrator framed the issue as "whether the Agency violated the [m]aster [a]greement or applicable laws in the manner in which the Agency handled [the grievant's] opportunity to work overtime." Id. at 17.

The Arbitrator found that Article 14, Section 2 of the parties' agreement provides that overtime work shall be distributed among qualified employees, with some conditions not relevant here. The Arbitrator also found that the overtime callback roster for MAAs had been used prior to the period of the grievance, but was not adhered to during the period of the grievance. The Arbitrator found that the Agency had changed the overtime procedure and had not notified the Union or given it an opportunity to request bargaining over the change. The Arbitrator noted that fiscal restrictions "cannot be used to invalidate the Agency's contractual obligations." Id.

[ v55 p139 ] At arbitration, the Union contended, and it was unrefuted, that some of the bargaining unit employees to whom the Agency assigned the MAA work were lower-graded employees who were not qualified to perform the work of the position. At the hearing, some of the lower-graded employees testified that the Agency offered the work to them provided they accepted compensatory time, instead of overtime payment, for performing the work. They also testified that they agreed to this condition to gain career-enhancing experience that could help them obtain promotions.

The Arbitrator concluded that the Agency violated the agreement when it denied the grievant the opportunity to work overtime. Consistent with the parties' stipulation, the Arbitrator awarded the grievant payment for each loss of overtime opportunity for which the overtime callback roster was not used and he was available. In reconstructing what overtime callback assignments the grievant would have received if the Agency had observed the overtime callback roster procedure, the Arbitrator did not distinguish among supervisors or bargaining unit employees from other non-MAS components who had performed the MAA work.

III. Positions of the Parties

A. Agency's Exceptions

First, the Agency argues that the award violates its right to assign work, including overtime. The Agency asserts that under the agreement, it retains the right to decide whether to assign overtime and it had no duty to provide overtime to employees on the callback roster in lieu of assigning the work to a supervisor. The Agency claims that the award abrogates a statutory management right and that such an award cannot constitute an appropriate arrangement under section 7106(b)(3).

Second, the Agency argues that the award is inconsistent with the Back Pay Act because backpay may be awarded only if an agency has committed an unwarranted personnel action, and the Agency maintains that it committed no such action.

Third, the Agency contends that the award is inconsistent with 5 C.F.R. § 610.121(a), a Government-wide regulation. [n3] According to the Agency, the award imposes a collective bargaining duty on the Agency which requires, in effect, that the Agency change employee scheduling to ensure that employees in the bargaining unit receive overtime. The Agency maintains that any alternative scheduling would substantially increase costs, and that such an increase in costs is contrary to section 610.121(a).

Fourth, the Agency contends that the award fails to draw its essence from the parties' agreement. The Agency asserts that under the agreement, management retains the right to assign work to supervisors, and needs to follow the requirement for equitable assignment of overtime opportunities only if it decides to assign overtime to non-supervisory personnel.

B. Union's Opposition

The Union asserts that although an award cannot infringe on management's right to assign work, an arbitrator has authority to enforce procedures governing the selection of qualified employees to perform work. The Union relies on the Authority's decision in National Treasury Employees Union, Chapter 174 and U.S. Department of the Treasury, Customs Service, Region IV, 45 FLRA 1051 (1992) (Customs Service II), in which the Authority found that the enforced contractual provisions related to the equitable assignment of overtime among bargaining unit employees, and were arrangements that did not abrogate management's right to assign work to supervisors.

As to the Agency's Back Pay Act exception, the Union asserts that backpay is an appropriate remedy. According to the Union, the Agency's failure to adhere to the agreement provision on use of the callback overtime roster resulted in the grievant's loss of overtime, and constitutes an unjustified or unwarranted personnel action. The Union maintains that the award does not violate any law.

The Union did not specifically respond to the Agency's contention that the award is inconsistent with 5 C.F.R. § 610.121(a). The Union stated that the Agency, under "the guise of fiscal restraint," decided to ignore the Statute by unilaterally changing the way it assigned work in one small service within the medical center. Opposition at 8. The Union claims that rather than notify the Union and afford it the opportunity to bargain over such a change, the Agency "just started offering supervisors and individuals not on the [overtime] callback [roster] such work." Id. [ v55 p140 ]

Finally, the Union maintains that the award is consistent with Articles 14 and 15 of the agreement.

IV. Analysis and Conclusions

A. The Award Is Inconsistent with Management's Rights to Assign Work and Assign Employees under Section 7106(a) of the Statute as It Pertains to Supervisors

The Authority's role in reviewing arbitration awards depends on the nature of the exceptions raised by the appealing party. SeeU.S. Customs Service v. FLRA, 43 F.3d 682, 686 (D.C. Cir. 1994). In National Treasury Employees Union, Chapter 24 and U.S. Department of the Treasury, Internal Revenue Service, 50 FLRA 330, 332 (1995) (NTEU Chapter 24), the Authority stated that if the arbitrator's decision is challenged, as it is here, on the ground that it is contrary to any law, rule, or regulation, the Authority will review the legal question denovo. In applying a standard of denovo review, the Authority assesses whether an arbitrator's legal conclusions are consistent with the applicable standard of law. National Federation of Federal Employees, Local 1437 and U.S. Department of the Army, Army Research, Development and Engineering Center, 53 FLRA 1703, 1710 (1998). In making that assessment, the Authority defers to the arbitrator's underlying factual findings. Seeid.[n4]

The Authority's framework for resolving exceptions to arbitration awards alleging that the award violates management's rights under section 7106 of the Statute is set forth in U.S. Department of the Treasury, Bureau of Engraving and Printing, Washington, D.C. and National Treasury Employees Union, Chapter 201, 53 FLRA 146, 151-54 (1997) (BEP). Upon finding that the award affects a management right under section 7106(a), the Authority applies a two-prong test. Under Prong I of this framework, the Authority examines whether the award provides a remedy for a violation of either applicable law, within the meaning of section 7106(a)(2) of the Statute, or a contract provision that was negotiated pursuant to section 7106(b) of the Statute. Id. at 153. If the award provides such a remedy, the Authority will find that the award satisfies Prong I of the framework and will then address Prong II. Under Prong II, the Authority considers whether the arbitrator's remedy reflects a reconstruction of what management would have done if management had not violated the law or contractual provision at issue. Id. at 154. If the arbitrator's remedy reflects such a reconstruction, the Authority will find that the award satisfies Prong II. An award that fails to satisfy either Prong I or Prong II will be set aside or remanded to the parties, as appropriate. SeeU.S. Department of Defense, Defense Logistics Agency, Defense Distribution Depot, Norfolk, Virginia and International Association of Machinists and Aerospace Workers, Local Lodge 97, 54 FLRA 180, 185 (1998).

The Authority has held that the right of an agency to assign work under section 7106(a)(2)(B) of the Statute includes the authority to determine the particular duties to be assigned, when work assignments will occur, and to whom or what positions the duties will be assigned. U.S. Department of Justice, Federal Bureau of Prisons, United States Penitentiary, Leavenworth, Kansas and American Federation of Government Employees, Local 919, 53 FLRA 165, 168-69 (1997) (Bureau of Prisons, Leavenworth). The Authority has also held that an award requiring an agency to adhere to objective criteria in assigning overtime affects management's right to assign work under section 7106(a)(2)(B) and assign employees under section 7106(a)(2)(A) of the Statute. U.S. Department of Commerce, Patent and Trademark Office and Patent Office Professional Association, 37 FLRA 1204, 1214 (1990). Here, the award requires the Agency to follow the overtime callback roster procedure established under Article 15, Section 1 of the agreement. Based on Authority precedent, the portion of the award ordering the Agency to utilize the overtime callback roster procedure affects management's rights.

In determining whether an award satisfies Prong I of BEP, the Authority determines whether the provision of the agreement being enforced by the Arbitrator was negotiated pursuant to section 7106(b) of the Statute. In the instant case, as interpreted by the Arbitrator, Article 15, Section 1 of the agreement requires the Agency to use the overtime callback roster procedure when off-duty employees are needed to work. The Arbitrator's interpretation of this provision and his finding that the Agency violated it, demonstrate that the Arbitrator was enforcing a provision in the parties' agreement within the meaning of BEP Prong I. SeeBEP, 53 FLRA at 153.

Accordingly, we must now determine whether the provision was negotiated pursuant to a subsection of 7106(b). We construe Article 15, Section 1 of the agree- [ v55 p141 ] ment as an enforceable procedure within the meaning of section 7106(b)(2) of the Statute. As an initial matter, it is undisputed that the parties and the Arbitrator considered Article 15, Section 1 to constitute a procedure within the meaning of section 7106(b)(2) of the Statute. See Award at 6-10, 14, 15.

Moreover, we note that the procedure is substantively similar to the procedure set forth in National Federation of Federal Employees, Local 1853 and U.S. Attorney's Office, Eastern District of New York, Brooklyn, N.Y., 29 FLRA 94, 98-101 (1987) (U.S. Attorney's Office). Provision 3 in U.S. Attorney's Office, which the Authority found to constitute a procedure within the meaning of section 7106(b)(2) of the Statute, concerned the assignment of overtime to volunteers, who were qualified to perform the work, as determined by the Agency. The provision also provided for the equitable rotation of the overtime among the qualified volunteers. The provision in U.S. Attorney's Office is similar to the provision in this case because both concern overtime assignments, both provide for the assignment of the overtime to volunteers, and both provide that the Agency determines which employees are qualified to perform the duties. The provision in U.S. Attorney's Office provides for the equitable rotation of the overtime, while Article 15, Section 1 in this case uses a roster.

The Authority has also found provisions that establish a roster of qualified employees for overtime assignments to constitute a procedure. Provision 1 in National Association of Government Employees, Local R14-52 and U.S. Department of the Army, Red River Army Depot, Texarkana, Texas, 44 FLRA 738, 739-42 (1992) established a roster of qualified employees, based on seniority, for overtime assignments. The Authority found that Provision 1 established a procedure for the rotational assignment of overtime that was negotiable.

Here, in establishing the overtime callback rosters under Article 15, Section 1 of the agreement, there is no contention that the Agency does not determine which employees are eligible and qualified to be on each of the rosters. There is also no question that the Agency was able to determine the qualifications needed to perform the work in this case. See Award at 6-9, 13-15. Thus, we find that Article 15, Section 1 constitutes a procedure within the meaning of section 7106(b)(2) of the Statute. [n5] Prong I of the BEP framework has been established.

Next, we turn to Prong II of the BEP analysis. Under Prong II, the remedy awarded must reflect a reconstruction of what management would have done if management had not violated the agreement provision on a section 7106(b) matter. SeeBEP 53 FLRA at 154. Here, the Arbitrator ordered that the grievant be paid for all of the missed overtime opportunities, whether the work was performed by supervisors or other employees not on the MAS roster. At issue in the reconstruction is whether the Agency was free to assign some or all of the work to supervisors, or whether all of the work had to be assigned to the grievant on callback overtime.

Attempts to confine work assignments to the bargaining unit are contrary to section 7106(a)(2)(B). SeeAmerican Federation of Government Employees, AFL-CIO, Local 2317 and U.S. Marine Corps, Marine Corps Logistics Base, Nonappropriated Fund Instrumentality, Albany, Georgia, 29 FLRA 1587, 1593 (1987), dismissed as to other matters, No. 88-8006 (11th Cir. Aug. 30, 1990). The principle that management may not be precluded from assigning work normally performed by unit employees to supervisors is well established in Authority case law. See, e.g., Southwestern Power Administration and International Brotherhood of Electrical Workers, Local 1002, 22 FLRA 475, 476-77 (1986); American Federation of Government Employees, AFL-CIO, International Council of U.S. Marshals Service Locals and Department of Justice, U.S. Marshals Service, 11 FLRA 672, 674-76 (1983) (Proposals 2 and 3); American Federation of Government Employees, AFL-CIO, National Joint Council of Food Inspection Locals and Department of Agriculture, Food Safety and Quality Service, Washington, D.C., 9 FLRA 663, 663-64 (1982) (Proposal 1). Therefore, management has the right to assign this work to supervisors.

To the extent that the award requires the Agency to assign all such work to the grievant on an overtime callback basis, and precludes the assignment of the work to supervisors, it is inconsistent with section 7106(a)(2)(B) of the Statute. The Agency made clear in its Exceptions that it did, and would continue to, exercise its right to assign overtime work to supervisors. In this regard, the Arbitrator's reconstruction of what the Agency would have done fails, and must be set aside.

As to other unit employees outside the MAS, according to the Arbitrator, the Agency was not free to assign the MAA work to them on an overtime or com- [ v55 p142 ] pensatory time basis because the parties had negotiated a procedure for the assignment of overtime to unit employees within MAS. We find that, had the Agency followed the overtime callback roster procedure set forth in Article 15, it would not have assigned the work to other unit employees outside the MAS, and that the Arbitrator's award enforced the agreement provision as if the Agency had observed the agreement provision. As noted above, the parties stipulated that the grievant would have worked the callback overtime. [n6] Accordingly, we conclude that the award, as it applies to work performed by other unit employees outside the MAS, satisfies Prong II of the BEP test.

To the extent that the Agency assigned work on an overtime basis, including compensatory time, to unit employees other than those on the overtime callback roster, the Agency failed to follow the procedure established under the parties' agreement. Therefore, under Prong II of the BEP test, we find that the award fails the test as it applies to supervisors, but satisfies the test as it applies to other unit employees outside the MAS.

Accordingly, based on the discussion above, we will set aside the award to the extent that it prohibits the assignment of work to supervisors. [n7]

B. The Award Is Not Consistent with the Back Pay Act as it Pertains to Supervisors

Under the Back Pay Act, an award of backpay is authorized only when an arbitrator finds that: (1) the aggrieved employee was affected by an unjustified or unwarranted personnel action; and (2) the personnel action has resulted in the withdrawal or reduction of the grievant's pay, allowances or differentials. SeeU.S. Department of Health and Human Services and National Treasury Employees Union, 54 FLRA 1210, 1219 (1998).

Consistent with the determination regarding the award's compliance with management's rights, the award of backpay to the grievant for lost overtime for the occasions when other unit employees outside the MAS performed the MAA work does not violate the Back Pay Act. In those circumstances, the Arbitrator found that the Agency failed to follow Article 15, Section 1 of the parties' agreement. An agency's violation of a collective bargaining agreement is an unjustified or unwarranted personnel action for which backpay may be awarded under the Back Pay Act.

However, the award of backpay to the grievant for lost overtime for the occasions when the MAA work was assigned to supervisors is not authorized under the Back Pay Act. As determined above, the Agency had the right to assign work to supervisors, and it committed no unjustified or unwarranted personnel action when it assigned work to supervisors. Accordingly, we set aside the award to the extent it provides the grievant backpay for occasions when supervisors performed the MAA work.

C. The Award Is Consistent with 5 C.F.R. § 610.121(a) on Scheduling Work to Avoid Payment of Overtime

The Agency's reliance on 5 C.F.R. § 610.121(a) is misplaced. That provision implements 5 U.S.C. § 6101(a)(3)(A), which requires that an agency must schedule employees' tours of duty not less than 7 days in advance, except when the head of an agency determines that the Agency would be seriously handicapped in carrying out its functions or that costs would be substantially increased. This case involves the assignment of overtime, not the scheduling of tours of duty. Cf. United States Department of Agriculture, Animal and Plant Health Inspection Service, Plant Protection and Quarantine Program, Seattle, Washington and National Association of Agriculture Employees, 51 FLRA 975 (1996) (agency terminated Sunday overtime shift because of lack of work). The Agency has not demonstrated that the Arbitrator's award enforcing the negotiated overtime assignment provision conflicts with section 610.121(a) and provides no basis for finding the award deficient under section 7122(a) of the Statute. SeeU.S. Department of Justice, Immigration and Naturalization Service and American Federation of Government Employees, National Immigration and Naturalization Service Council, 42 FLRA 222, 228-30 (1991). Accordingly, we deny this exception.

V. Decision

We deny the Agency's exceptions contending that the award is deficient as it pertains to bargaining unit employees. However, we find that the award, as it pertains to the assignment of work to supervisors, is contrary to law because it violates management's rights to assign work and assign employees under section 7106(a) of the Statute. Therefore, we set aside the award to the extent it limits the assignment of work to [ v55 p143 ] supervisors and provides the grievant backpay for work performed by supervisors.

APPENDIX

Article 14 Overtime

. . . .

Section 2 - Overtime work shall be distributed fairly and equitably among qualified employees with consideration
being given to such factors as the character of the work, qualifications, availability, and organizational
location of employee; knowledge of the particular type of work involved; and health/fatigue limitations.

. . . .

Section 4 - . . . . The Employer retains the right to direct an employee to work overtime consistent with Section 3
of the article if there are no qualified volunteers in the same work unit. The method of scheduling distribution
of overtime will be subject to negotiations in local supplemental agreements.

. . . .

Article 15 Call-Back and Standby

Section 1 - . . . . Management will maintain rosters to provide an orderly process for contacting employees when
they are needed during off-duty hours. An employee's name on any voluntary call-back roster does not obligate
the employee to restrict his/her activities in any way to be available when called. However, with due consideration
being given to personal hardship, an employee may be required to report for duty if actually reached.

Chair Segal's dissenting opinion is set forth at the end of this decision.

Footnote # 2 for
55 FLRA No. 23
- Authority's Decision

The text of Article 15 and other pertinent agreement provisions is set forth in the Appendix to this decision.

Footnote # 3 for
55 FLRA No. 23
- Authority's Decision

5 C.F.R. § 610.121(a) states in pertinent part:

(a) Except when the head of an agency determines that the agency would be seriously handicapped in carrying out its functions
or that costs would be substantially increased, he or she shall provide that--

(1) Assignments to tours of duty are scheduled in advance of the administrative workweek over periods of not less than
1 week;

We note that, in addition to arguing that the provision constitutes a procedure, the Union argues that the provision is an appropriate
arrangement. Because we have determined that the provision constitutes a procedure within the meaning of section
7106(b)(2), we need not address the Union's alternate argument that the provision constitutes an appropriate arrangement within
the meaning of section 7106(b)(3) of the Statute.

Footnote # 6 for
55 FLRA No. 23
- Authority's Decision

Although two employees were on the overtime callback roster, the other employee withdrew f